(The following story by John D. Boyd appeared on The Journal of Commerce website on December 7, 2009.)
WASHINGTON, D.C. — The $26 billion buyout of BNSF Railway by Warren Buffett’s Berkshire Hathaway investment firm cleared a key antitrust review process.
The Federal Trade Commission listed the transaction among several that were granted “early termination” from a mandatory waiting period under antitrust law.
It means both the FTC and Department of Justice have conducted a preliminary review of the merger filing, and cleared the deal to proceed.
The two companies said “this regulatory action is an important step in satisfying the closing conditions as set forth in the merger agreement. BNSF and Berkshire continue to expect the transaction to close in the first quarter of 2010.”
Separately, the economic regulator of railroads, the Surface Transportation Board, has signaled it will probably not have jurisdiction over Berkshire’s acquisition of BNSF, because the STB normally reviews rail mergers and Berkshire does not own another railroad.
Buffett recently said Berkshire also shed stock it previously held in Union Pacific Railroad and in Norfolk Southern Railway, so that those holdings would not get in the way of the BNSF purchase.
Some shipper representatives have said the STB will need to act, though, to prevent Buffett’s 31 percent premium for BNSF shares from elevating the railroad’s rate base and thereby helping push freight rates higher.
Meanwhile, disgruntled shareholders have filed several lawsuits over the deal, saying the fast and secretive talks that produced Buffett’s offer of $100 a share did not give other potential buyers a chance to bid BNSF’s sale price higher.